Tom Harkin

Mr. HARKIN

Mr. HARKIN. I thank the Senator from California for her observations and her questions. I again thank my colleague from California for her many years of working so hard on behalf of our working families. There is no one who has worked harder and longer and fought more diligently for the rights of working families, working men, working women, in this country than Senator Boxer of California. I say to the Senator, I am proud to have you on our side in this fight, too, because it is a fight for justice. It is a fight just to make sure people are treated decently as human beings. I guess in my fondest, perhaps, hopes, maybe President Bush didn't even know about this, and this was going on underneath him. Maybe through our debates here he will find out about it and say: What is happening? Who is doing this on my watch? Well, the buck does stop at the President's desk. Maybe he doesn't even know this is going on but the people he has hired underneath him are implementing this. So maybe our debate will enlighten the President. Maybe some word will get to him and he will say, ``What is going on?'' and he will become alarmed at what people under him are doing, and perhaps he will put a stop to it. That would be my fondest wish.

Mr. HARKIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HARKIN. Yes, without losing my right to the floor.

Mr. HARKIN. Mr. President, I understand the first vote this morning will be on the Harkin amendment; is that true?

Mr. HARKIN. As I said, hope springs eternal. And I always believe in redemption. The hope for redemption is always there, that the wayward will come home and find the true path. And I hope the President will sit down and think about this and understand what is happening on his watch with regard to this issue. So I appreciate what my friend from West Virginia has said. I would hope this would happen. But again, we can't go on hope around here. We have to go on what reality is. And the reality is, the Department of Labor, under this administration, has promulgated these proposed changes in overtime. They will go into effect unless we take this action. That is the real world we live in. That is why I have offered this amendment. And that is why I feel so strongly about it. Oh, there are maybe a few things that each of us gets interested in and gets involved in because we feel deeply about them. One of the issues I always get involved in and for which I take the floor is to make sure we expand and promote opportunities for people with disabilities in our country. This goes back to when I was the chief sponsor of the Americans With Disabilities Act. So this is another area in which I always keep a close watch and find out what the administration and the Supreme Court and others are doing to cut down on the rights of people with disabilities. That is one area. Another area I feel so strongly about is our working families, working people who don't have a lot of say-so over their jobs. They go to work every day. They do what their bosses tell them. They put in extra effort and extra energy. A lot of times they don't get paid overtime for that extra few minutes every day, that extra effort. But if they are asked to work overtime, they should get paid. If they are taking time away from their families to work overtime, they ought to be justly compensated for it. That is why I feel so strongly about this. I couldn't say it any better than Sheila Perez of Bremerton, WA. Here is what she said: I began my career as a supply clerk earning $3.10/hr in 1976. I recognized early in my federal career that in order for me as a working single parent to support my family, I needed to find more lucrative employment. I entered an upward mobility program and received training to become an engineer technician with a career ladder that gave me a yearly boost in income. It seemed though that even with a decent raise each year, I really relied on overtime income to help make ends meet. There are many more single parents today with the same problem. How does one pay for the car that broke down or the braces for the children's teeth? Overtime income has been a lifesaver to many of us. When I as a working mother leave my 8-hour/day job and go home, my second shift begins. There is dinner to cook, dishes to wash, laundry, and all the other housework that must be done which adds another 3 to 4 hours to your workday. When one has to put in extra hours at work, it takes away from the time needed to take care of our personal needs. It seems only fair that one should be compensated for that extra effort. Overtime is a sacrifice of one's time, energy, and physical and mental well-being. Compensation should be commensurate in the form of premium pay as it is a premium of one's personal time, energy, and expertise that is being used. That is a great sentence that Sheila writes: Compensation should be commensurate in the form of premium pay as it is a premium of one's personal time, energy, and expertise that is being used. It has been a crime that many engineers and technicians were paid less than even their straight time for overtime worked. It has never made sense to me that the hours I work past my normal eight are of lesser value, when those additional hours are at a cost of my personal time. Sheila Perez from Bremerton, WA. I could not say it any better. That is what this fight is all about. It is about people who get up and go to work every day. They pull their load, pay their taxes. They are good citizens. They raise their families. They want to spend time with their families. If they are being asked to work overtime, as Sheila said, that is premium time. That is personal time. That is family time. They ought to be paid for it. They ought to be paid time and a half for it. What these proposed changes would mean is that Sheila Perez could be asked to work over 40 hours a week and not get paid one penny more than what she is being paid right now. She would not be paid anything more if she were on a salaried basis. It is sort of free time. That is why I said the other day, not only is this President and this administration shipping jobs out of the country, they are now importing into this country Third World labor standards: work 60 hours a week, no overtime, no commensurate pay. We will have another issue on pensions where they are trying to change the pension program, take away the rightful pensions which people have earned, privatize Social Security, privatize Medicare. It doesn't sound like the America I grew up in and the America that built a strong and viable middle class. Right now American workers work longer per year than workers in any industrialized country. The International Labor Organization found that American workers put in an average of 1,825 hours a year, average. In Europe, French workers have an average of 1,545 hours per year; German workers, 1,444 hours per year. So we are already working longer. Now they want us to work longer without any pay. That is why I have said this is antiworker. It is antifamily to change these rules and regulations as they want. I have had my say. I know others want to speak. I ask unanimous consent to add Senator Johnson as a cosponsor of my amendment.

Mr. HARKIN. I yield.

Mr. HARKIN. I hope he would take that letter back and say he wouldn't. The idea of having a veto threat out there, to veto this entire bill, if the Senate works its will and says: No, we are not going to let these rules and regulations come into effect, this almost borders on the bizarre that something like this would happen. I thank the Senator. I see my great leader. Again, talk about a fighter for working families in America, there is no one, including me and the Senator from California, who has fought harder and longer for working families than the Senator from West Virginia.

Mr. HARKIN. Yes. I would be glad to yield to my friend from California.

Mr. HARKIN. Mr. President, I know we are still on the Labor, Health and Human Services, Education appropriations, and I wish to speak for a little while on the pending amendment which I have laid down prior to the distinguished Senator from New York speaking. I want to follow up and speak for a little bit longer on that. I know my colleague from Alabama and maybe others are here so I will try to be as succinct as possible, but I did want to, before the weekend came, to again lay out for the Senate and for the Nation why it is so important for us to take action, to stop the implementation of these proposed changes in rules and regulations that deal with overtime pay. I thought I would take some time now to, number one, respond to some arguments made by the Senator from Wyoming yesterday, Senator Enzi, but also to again give some personal stories of what is happening to people around the country today and how others might be affected with these changes in rules and regulations. As I have done with the rules and regulations, you can read them. If you want to go to sleep fast, try reading rules and regulations sometimes. That will put you to sleep. It becomes a blur out there as to what all these fancy words and phrases and subparagraph and titles all mean. But when you get through it all, it means people are affected one way or the other, either for good or for ill. It means workers are either supported in their jobs and their family life or they are not. That is what these changes and rules are about, affecting human beings and their lives and how they live and how they work and what their quality of life is going to be. Again, a couple of things I want to lay out. One, to lay out what the industry has said about the proposed overtime rule. I also wanted to bring specific examples and then show what has happened to the workforce over the last few years because, as I said earlier, the first wave of people to be hit by this proposed change in rules and regulations, if they go into effect, are working women. I will show why that is so in my comments this morning. First of all, the Bush administration has said the proposed rules on overtime will not substantially change the exempt and nonexempt status of American workers. They say they merely want to ``clarify the current rules.'' I believe this is misleading, at best. The proposal will have a sweeping effect on millions of Americans and will unalterably change, will change fundamentally, the basic principle of the 40-hour workweek as we have known it since 1938. Don't take my word for it. Look at some of the comments from industry. In May 2003, an analysis by Hewitt Associates, which advertises on their Web site as a global human resources outsourcing and consulting firm, says on their Web site their client roster includes more than half of the Fortune 500 companies. Here is their analysis of the proposed rule changes: These proposed changes likely will open the door for employers to reclassify a large number of previously nonexempt employees as exempt. The resulting effect on compensation and morale could be detrimental as employees previously accustomed to earning in some cases significant amounts of overtime, would suddenly lose their opportunity. That is from Hewitt Associates. And from the Society for Human Resource Management, which on its Web site says it is ``the world's largest association devoted to human resource management.'' And regarding the proposed overtime changes, the society said: This is going to affect every workplace, every employee, every profession. So, again, whether we hear from the administration, from the Department of Labor, that this is simply a clarification, these are simple little clarifications. Meanwhile, the main human resource management association and a human resource consultant for Fortune 500 companies say this is big stuff. It is going to affect every workplace, employee, every profession, according to the Society for Human Resource Management. This same Society for Human Resource Management said the proposed rule is not clearer than current regulations. Deron Zeppelin told the Chicago Tribune: It looks like they're just moving from one ambiguity to the next. Again, as I said, according to the Chicago Tribune: The Labor and Department's [Wage and Hour Administrator Tammy] McCutchen predicts a deluge of lawsuits as employees and employers press for clarifications once the new rules go into effect. I thought we wanted to reduce the number of lawsuits. My friend from Wyoming argued that we have all these lawsuits out there right now. But this is going to open the door for even more lawsuits. The reason we are having lawsuits out there now is because employers are already violating the Fair Labor Standards Act, in terms of the 40-hour workweek. I will refer to that more later. The Chamber of Commerce said, on the proposed rule, in their formal comments: We support raising the minimum compensation necessary to qualify as an exempt employee provided that such change is made in conjunction with significant reforms of the duties and salary basis test. Understand what they are saying. They are saying we can raise the minimum compensation, that is fine, but not unless we have significant reforms of the duties and salary basis test--significant; not minor, not simple clarification but significant reforms. The American Corporate Council Association, and I am quoting from their statement: . . . also supports other aspects of the present draft, including creating a new computer employee exemption; eliminating discretion and independent judgment test as a criterion of the professional exemption; eliminating the primary and nonprimary duties criterion of the administrative exemption; and the changes made to the outside sales exemption. For the uninitiated, in all this fancy jargon, what the American Corporate Council Association says is that they want a major exemption for computer technicians from overtime protections. They also want to really relax the current ``duties'' test to be exempt from overtime to incorporate more workers in the overtime exemption. These are big changes, sweeping changes in who would get overtime pay and who would not. Last, the National Association of Manufacturers said, on eliminating the academic study requirement for the professional exemption--right now it is generally based on 4 years of college. If you have 4 years of college that is sort of the first hurdle that you would be exempt as a professional employee. It doesn't necessarily mean you are exempt, but its one of the key requirements to be exempt. The proposed rule changes all that. It just says you can replace that academic requirement with work experience or training. I get it, you do the exact same job for a couple of years--let's say, nursing--so you go from getting overtime to being reclassified as a professional from all of that experience--and you no longer receive overtime pay although you're doing the exact same job. Well, the National Association of Manufacturers appears to think that's a great idea. They applauded the Labor Department for including this alternative means of establishing that an employee has the knowledge required for the exemption to apply. Again, what does that mean? You don't need 4 years of college. You could have on-the-job training, a high school degree and, bang, all of a sudden you are a professional, and they can say you are exempt. So when you hear people say these are minor changes, they are not minor at all. That is why 8 to 10 million people are going to be affected by this. Again, there is the argument that we need to update these rules. I am all for updating them. The Senator from Wyoming spoke the other day about some of the occupations that are still listed. I think one of them was straw man--I forget what some of the others were. Oh, a leg man and a straw man and all that--fine. If they want to tweak the regulations to get rid of those jobs that no longer exist, fine by me. But don't take overtime pay protection from those workers, those jobs that currently have it. The fact is, the Department has revised overtime regulations several times since 1938 just because, obviously, jobs change. Some of the things they covered before don't exist. Obviously a straw man, whoever that was, or a leg man, whatever that was, doesn't exist anymore. If they want to do away with that or change that, that is fine. But that is not what they are doing. So if they want to update them to match current occupations, that is fine. If the administration had done that, that would have been OK. But they went far beyond that. I have just a few other brief things. The Senator from Wyoming said the other day the amendment I offered would not allow the Department of Labor to review the 78,000 comments they got in. That is simply not true. My amendment says they can't promulgate these rules and regulations. They can have the comments, they can look at them, they just can't issue a rule that would take away the present overtime protection that workers now have. That is all my amendment does. And he said my amendment would block an increase in the income threshold for low-income workers. Again, that's just not true. My amendment specifically only prohibits implementing a rule that would take overtime pay protection to those millions of workers who currently have it. We would support new rules to increase overtime pay protection for workers. Then the Senator from Wyoming said the union contracts protect overtime. That is true, union contracts do. But union contracts right now only cover 13 percent of the workforce in America. What about the other 77 percent who are not covered? And right now when a union goes out and the contracts expire, overtime is not an issue. Why? Because the law says they have to pay overtime. So when the contract comes up, that isn't even an area for negotiation because the law says they have to pay them overtime over 40 hours. Now with these proposed changes in rules and regulations, every time a union contract expires, that is a negotiable item. We have to negotiate for whether or not they will get paid overtime. That means they will have to give up something else in order to get overtime. There is something floating around about first responders, nurses and such, and that somehow that wouldn't be changed. But we have been through these rules and regulations. There is no exemption. There is no carve-out for policemen, for firemen, and first responders. Not one thing in this carves them out. I have heard it said that the administration said sort of quietly that maybe they will not include this. I don't see that anywhere. Lastly, it has been said that wage and hour cases now exceed discrimination suits. Well, I wonder which. Maybe it is because a lot of employers are now basically violating the Fair Labor Standards Act because they can get away with it. For example, Wal-Mart, the largest retailer, is facing 37 lawsuits in 29 States from employees alleging they were illegally forced to work extra hours to meet corporate productivity demands--not 1 but 37 lawsuits in 29 States. In fact, in December, a Federal jury in Portland, OR, found Wal-Mart guilty of asking workers to clock out and then to return to work unpaid. A Federal jury found them guilty of doing that. Workers clocked out and then they had to come back and work overtime without getting paid. About 270 insurance claims adjustors have filed here in U.S. District Court in Washington, DC, alleging that their employer, GEICO Insurance, broke the law by improperly classifying workers as exempt from overtime pay. Again, maybe it doesn't surprise me that wage and hour cases are now exceeding discrimination cases. The proposed rules and regulations would make this legal and say to Wal-Mart you are off the hook. All these lawsuits would just fall by the wayside because of a change of law, and they could exempt these people. They are big changes. I said earlier that the first wave of people who would be hit by this would be working women. I want to show you what I mean by that. This chart shows basically what is happening in the workforce in America--from 1948 it 2002. As you can see, the labor force participation rates for men and women have steadily declined. Look at what has happened with women--going from slightly over 30 percent to a little over 60 percent of the workforce in that period of time. More and more women have entered the workforce over that period of time. Here are some other statistics. In 1975, 44.9 percent of women with children were in the labor force in 1975. In 2001, 70.8 percent of women with children were in the labor force. In 1975, 30.8 percent of the women who worked had children under the age of 2. Today, 58 percent of the women in the workforce have children under the age of 2. Here are two more statistics. Twenty-eight percent of working mothers work nights or on weekends. Forty percent of working mothers work different schedules than their spouses. What that adds up to is families are working longer and longer, and they are taking time away from their families to make ends meet. This chart shows the average weeks worked per year by middle-income families with children. In 1969, the average family with children worked 78.2 weeks per year. We know there are 52 weeks in the year. That means that perhaps someone worked 40 or 52 weeks, and someone had a part-time job and they worked maybe 28 weeks during the year in 1969. In 2000, the weeks worked by the average middle-income family with children was 97.9 weeks per year. Where is that coming from? It is coming from the women in the workforce who are working longer hours, working nights, and working weekends. They are the first ones who are going to be hit by these changes in overtime laws. Many of these women are working as secretaries, as claims adjustors, as nurses, bookkeepers, social workers and paralegals. They are salaried. They work in insurance companies and banks. Right now, if they work over 40 hours, they are paid overtime. Under these changes, their employers can legally take away their overtime. Let me give a couple of examples of people who would be affected by these changes. Here is Michael Farrar who works at the NAV/AIR depot in Jacksonville, FL. He is a cost estimator at the NAV/AIR depot who specializes in aircraft engine and component production and repair. If he loses his right to overtime pay, he will be paid straight time for any hours over 40 per week. He says: If I don't get my overtime, it will be hard to exist. He and his wife rely on overtime pay to support their 21-year-old disabled son who lives with them. He says: When I took this job, it was clear that I was supposed to work more than 40 hours a week, and I agreed to that because I knew I would need the money. We would be devastated without the overtime. We have no more corners to cut. Let us not go back 40 years with these proposed Bush regulations. Let us go forward and pay people what they deserve. Here is Susan Moore, a planning coordinator from the Chicago Park and Planning District, a member of the International Federation of Professional and Technical Engineers. She says: I am currently entitled to time and a half under Federal law. I know for a fact that that is the reason I am not required to work long hours like the project managers who are not entitled to overtime pay. My supervisor has to think hard about whether to assign overtime to me because he has to pay for my time. That means more time for my family and that time is important to me. If the law changes and I lose my right to overtime pay, I will be faced with the imposing choice of losing time with my family, or losing my job.

Mr. HARKIN. I thank the assistant Democratic leader for his support and for the support of our working families. I yield the floor.

Mr. HARKIN. That is absolutely true.

Mr. HARKIN. I say to my friend from Pennsylvania, who has been cooperative, as he said, we have worked together well over a decade. We have always worked these things out to make sure we get a bill through. We will this time also. My point is that there were at least some conversations last night with leadership on both sides about accommodating schedules and having votes set up on Tuesday. The fact is that nothing has hindered the progress of this bill because four Democrats are running for President. We have had votes every day. We haven't filibustered anything. We haven't done anything. We have offered our amendments. We have had good debates and discussions, and we have had up-or-down votes. We had two votes today. It was not my decision to have two votes today. I could have had four or five votes today. Someone else above my pay grade made the decision that we would have two votes today and go home. It was not my decision that on Monday we will have one vote late in the day. Again, the leadership makes those decisions, not I. So Tuesday looks like a day when we will all be here. Everyone is going to be here. That is the day when we can get a lot accomplished. We are making good progress on this bill. I say to my friend from Pennsylvania and others, when you look at the past, this is a big bill. This bill covers more spending and more Departments and Agencies of the Federal Government than any other bill considered in Congress. In terms of total spending, it is second only to Defense. But it covers a host of Agencies and Departments, more than the Defense Department does. In the past, in 2001, we had 5 days of floor action on this bill; in 2000, we had 7 days; in 1999, 5 days. In 1998, it was passed in an omnibus, but in 1997, 9 days. So as you can see, it has always taken 5, 6, 7, 8 days to finish this bill because it covers so many different subjects. We went on the legislation on Wednesday. Monday was Labor Day. We came in, by agreement of the leadership, with no votes on Tuesday. That was, again, not our decision. That was a leadership decision on the Republican side. So we had Wednesday and Thursday and two votes today. Basically, we have been on the bill, at least voting, really only 2 days. To say we are going to have another couple days or 2 or 3 days on this bill is not exorbitant. It is in line with what we have done in the past. We would like to finish the bill as quickly as anyone. I think we have been very diligent in bringing up our amendments, offering them, and moving ahead. Again, I will object to setting aside any other amendment until we vote on this because it is that important. Everyone is going to be here on Tuesday. So we can vote on it on Tuesday, and we can vote on a lot of other things on Tuesday, too, and get a lot of this bill finished on Tuesday when the maximum number of Senators will be here in the Chamber.

Mr. HARKIN. OK.

Mr. HARKIN. Oh, OK.

Mr. HARKIN. I was yielding without losing my right to the floor. I thought you wanted to ask me a question.

Mr. HARKIN. In just a second, as soon as I finish my statement. Since there are no more votes today, and there are only going to be one or two votes on Monday, at the most--I don't know what is lined up--it is my intention that I will object to setting aside my amendment until such time as we have an up-or-down vote on it, which should occur on Tuesday, so there should not be any problem. But I will object to moving off this amendment for any other amendment. Without losing my right to the floor, I yield to the Senator.

Mr. HARKIN. But as I understand it, that cannot happen now. So it is my intention, since this is such a vitally important issue----

Mr. HARKIN. Yes.

Mr. HARKIN. The leader has it correct. I feel so strongly about this, and the fact that we worked with the leadership on the other side and on this side to try to get a finite list of amendments, to get a time certain on Tuesday to vote on this so there would be no surprises to anyone, and then I am told today that has fallen through for some reason. It was not my intention until now, but it is my intention. I have laid down the amendment. There are no more votes today. The leader on that side said there would be no more votes today, that we would have one vote or maybe two on Monday evening, I don't know on what. There are other things up there.

Mr. HARKIN. That is my understanding. I saw the list. I think it was drawn up last night with a finite list of amendments, yes.

Mr. HARKIN. Yes, I yield without losing my right to the floor.

Mr. HARKIN. I say to the leader, yes, that is right. In fact, I was part of a conversation that took place on the floor just last evening regarding that. There were no surprises. The amendment I have offered I actually read into the Record yesterday so everyone knew what the amendment was. It has been out there. It is not a very convoluted amendment. It is just a very simple, straightforward amendment. So everyone knew what it was. Since it is such an important issue, I think we all thought it would be advisable to have as many Senators here as possible to vote on this amendment. Therefore, as I understood it, there was at least some agreement made that we were going to vote next Tuesday on this amendment.

Mr. HARKIN. I am delighted to.

Mr. HARKIN. I say to my friend from Nevada, I consider this--well, we have a lot in the bill for education, but in terms of what we are going to do to protect working Americans, to protect their families, and to ensure their right to get time-and-a-half overtime, this is the key vote.

Mr. HARKIN. Yes, I am delighted to yield to the assistant leader.